Citation Nr: 1332385
Decision Date: 10/18/13 Archive Date: 10/24/13
DOCKET NO. 07-12 637 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon
THE ISSUES
1. Entitlement to service connection for a psychiatric disorder, claimed as anxiety disorder.
2. Entitlement to service connection for residuals of a broken nose.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Taylor, Counsel
INTRODUCTION
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).
The Veteran had active service from December 1955 to October 1956.
These matters come to the Board of Veterans' Appeals (Board) from a July 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
In September 2009, a Board hearing was held at the RO in Portland, Oregon, before a Veterans Law Judge (VLJ); the transcript is of record. In April 2012 correspondence the Veteran was informed that the VLJ who presided at his hearing had been designated to serve as Acting Chairman of the Board and is no longer available to consider the appeal. The Veteran was offered a new Board hearing. No response was received, and it is presumed that he does not want another hearing.
Claims for service connection for psychiatric disabilities may encompass claims for service connection for all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran filed a claim for anxiety disorder. The medical evidence of record contains diagnoses of various psychiatric disabilities, including anxiety disorder, dysthymic disorder, and depression. The issue on appeal has been recharacterized to include all of the Veteran's psychiatric disabilities.
The issue of entitlement to service connection for residuals of a broken nose being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
A preexisting psychiatric disability was noted at service entrance in November 1955; there is not clear and unmistakable evidence that the preexisting psychiatric disorder was not aggravated during service.
CONCLUSION OF LAW
The criteria for service connection for a psychiatric disorder have been met. 38 U.S.C.A. §§ 1131, 1153, 5107 (West. 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.
The Veteran seeks service connection for a psychiatric disability as a result of service.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).
At the time of the service entrance examination, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition).
To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).
A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b).
Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). When clear and unmistakable evidence demonstrates no permanent increase in disability during service, the presumption of aggravation is not applicable. Maxson v. West, 12 Vet. App. 453, 459-60 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).
When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
On the November 1955 service entrance history, the Veteran indicated that he had or had had depression or excessive worry and nervous trouble.
The November 1955 service entrance examination report shows psychiatric examination was abnormal and notes the following:
A moderately tense, anxious, timid boy of neurasthenic disposition with occasional disturbing emotional reactions.
Degree: Moderate.
Psychoneurosis moderate.
His neuropsychiatric status was assigned a profile of "3." See Odiorne v. Principi, 3 Vet. App. 456 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service).
The Board finds that a psychiatric disorder was noted at service entrance.
A September 1956 report from the Bureau of Medicine and Surgery notes the Veteran was admitted to a U. S. Naval Hospital with a diagnosis of passive aggressive reaction, with occasional actively aggressive and conversion features. The report reflects that he was admitted to the hospital after 5 months of duty because of complaints of nervousness, crying, and vomiting, and notes as follows:
Mental examination at that time revealed a glib, overtly hostile, immature young male with symptoms of extreme anxiety. He gave a history of being reared by an abusive father who deserted the family when the patient was five years of age. He quit school in the eleventh grade and was seen by the school psychiatrist on several occasions. In the Navy, he was disciplined while in boot camp. Psychological testing indicated average intelligence in an individual with anti-social personality traits and strong evidence of malingering and exaggeration. On 8 May 1956 the patient was discharged to duty, fit for same, with diagnosis, Passive Aggressive Reaction. On 1 June 1956 the patient was seen at the Dispensary in [], where it was felt that he was quite emotionally disturbed and made repeated gestures toward suicide. It was concluded that because of his childish dependencies, fear of distance from home and his persistent rejection of the facts as they stand in place of even partial acceptance of his situation, further therapeutic modalities seem quite futile.
. . .
Patient was transferred to this hospital on 5 September 1956. Upon arrival at this hospital, the patient appeared initially calm, however, he soon decompensated. He spent a good deal of time crying and expressed morbid fears which did not appear to be malingering. Most of the time, the patient is vague, withdrawn and markedly hostile. He expresses marked resentment toward his father and feels that he can't stand the pressures of authoritarian figures because once his father handcuffed him to a hot pipe so that he could not move and then locked him in the room. He relates an inimical home situation which has left him with few, if any, ego strengths to deal with the ordinary stress of Naval service. It is felt that this patient can best be described as having a passive aggressive reaction, characterized by inefficiency, stubbornness and passive obstructionism with additional symptoms of chronic anxiety and mild depression. The patient has a marked, underlying hostility which he finds difficult to act out and at times his anxiety reaches panic proportions. It is the opinion of the Board that continued Naval service is impossible for the patient. It is therefore recommended that he be discharged from the U. S. Navy.
His neuropsychiatric status was assigned a profile of "4."
In a May 2006 opinion, the Veteran's private psychologist noted psychotherapy treatment for dysthymic disorder and anxiety disorder since 2002. A history of depression and anxiety was noted to date to the mid 1950s, and his life course since that time was reported to have been chaotic with his life experiences vacillating between excitement and emptiness.
Consistent with the private opinion is the opinion of the August 2012 VA examiner to the effect that active duty created very significant stress which, in the context of his pre-existing psychiatric condition, caused him to require hospital treatment, and ultimate separation from active duty. It was noted that the rigors of military life, and geographic separation from his home created a situation where it was not possible for him to adapt. The diagnosis entered was panic disorder with agoraphobia. The examiner specifically determined that the Veteran's psychiatric disability was aggravated beyond the natural progression by service.
The Board finds that a psychiatric disorder was noted at service entrance and underwent a permanent increase due to the service. Thus, service connection is warranted for the currently diagnosed panic disorder with agoraphobia.
ORDER
Service connection for a psychiatric disorder is granted.
REMAND
As noted in the Board's prior remand, the Veteran testified that a doctor diagnosed him with a deviated septum which the Veteran contends is a residual of a broken nose in service. The VA treatment records referenced in the January 2013 Supplemental Statement of the Case noting a deviated septum are not of record.
Accordingly, the case is REMANDED for the following action:
1. Associate the VA treatment records reflecting a deviated septum with the claim file.
2. Schedule the Veteran for a VA nose examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review.
The examiner is to conduct all indicated tests.
The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any residuals of a broken nose, to include a deviated septum, are related to service.
The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).
Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs